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Simply put: Diplomats and rules of the game

As the Saudi Arabian embassy invokes the immunity clause for its diplomat accused of rape, Indian Express explains the guidelines that govern such privileges and looks at how India reacted when its envoys got into trouble abroad.

Written by Shubhajit Roy |
Updated: September 11, 2015 11:06:35 am
Devyani Khobragade, diplomatic immunity, legal immunity, government, Vienna Convention, saudi arabia diplomat, Devyani Khobragade, Devyani Khobragade case, gurgaon rape case, gurgaon rape case video, gurgaon rape case, gurgaon rape case news, saudi diplomat rape case, diplomat rape case, diplomat rape case india, crime news, crime news india, delhi news, indian express Devyani Khobragade returned to India in January 2014.

What is diplomatic immunity?

It’s the privilege of exemption from certain laws and taxes granted to diplomats by the country in which they are posted. It was framed so that diplomats can function without fear, threat or intimidation from the host country. Diplomatic immunity is granted on the basis of two conventions, popularly called the Vienna Conventions — the Convention on Diplomatic Relations, 1961, and the Convention on Consular Relations, 1963. They have been ratified by 187 countries, including India. Which means, it is a law under the Indian legal framework and cannot be violated.

What is the extent of their immunity?

According to the Vienna Convention on Diplomatic Relations, 1961, the immunity enjoyed by a diplomat posted in the embassy is “inviolable”. The diplomat cannot be arrested or detained and his house will have the same inviolability and protection as the embassy. It’s this point that the Saudi Arabian embassy has raised — that by entering the house of the diplomat to conduct investigations, the Gurgaon police have flouted the immunity rules. It is possible for the diplomat’s home country to waive immunity but this can happen only when the individual has committed a ‘serious crime’, unconnected with their diplomatic role or has witnessed such a crime. Alternatively, the home country may prosecute the individual.

Is this immunity the same for all diplomats?

No. The Vienna Convention classifies diplomats according to their posting in the embassy, consular or international organisations such as the UN. A nation has only one embassy per foreign country, usually in the capital, but may have multiple consulate offices, generally in locations where many of its citizens live or visit. Diplomats posted in an embassy get immunity, along with his or her family members. While diplomats posted in consulates too get immunity, they can be prosecuted in case of serious crimes, that is, when a warrant is issued. Besides, their families don’t share that immunity.

Isn’t that what happened in the Devyani case?

Yes. In December 2013, Devyani Khobragade, a deputy consul general at the Indian consulate in New York, had been arrested and reportedly strip-searched for alleged visa fraud on grounds that she did not honour the commitment to pay minimum wages as per US rules to her domestic help. Since she was a diplomat in the consulate, she was governed under the Vienna Convention on Consular Relations which provided her limited immunity. But the Indian government side-stepped this rule by transferring Khobragade to the Permanent Mission of India to the UN, which has the status of an embassy. That move gave her full diplomatic immunity as the Permanent Mission is covered by the Vienna Convention on Diplomatic Relations besides other UN rules. She was later moved to Ministry of External Affairs in New Delhi. The issue had escalated into a full-blown diplomatic spat between the US and India, which retaliated by downgrading privileges of certain category of US diplomats, among other steps.

Have there been other instances of Indian diplomats getting into trouble?

In June this year, India’s high commissioner to New Zealand, Ravi Thapar, was recalled over allegations that his wife had assaulted their chef. Police were denied permission to interview both Thapar and his wife Sharmila because of the immunity they enjoyed. He was recalled to India. In January 2011, the Indian government informed Britain’s Foreign and Commonwealth Office of its decision to transfer senior diplomat Anil Verma to India. Verma had been questioned by Scotland Yard on allegations that he had assaulted his wife. He too escaped prosecution.

What are the other cases of diplomats invoking immunity?

In May 2003, Mansur Ali, the 24-year-old son of then Senegalese ambassador to India Ahmed el Mansour Diop, was accused of murdering his driver Dilwar Singh, but the Delhi police could not pick him up for questioning as he had diplomatic immunity. The ambassador and his son soon left India. In 2011, Raymond Davis, a CIA contractor in Pakistan, was arrested after he shot dead two armed men on a Lahore street. The US claimed immunity since he had been admitted into Pakistan on a diplomatic passport. He was later let off by a Pakistani court after he coughed up ‘blood money’ to the relatives of the men he killed.

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